Flexmls® IDX API Terms of Use

This document sets forth the terms on which Financial Business Systems, Inc. (“FBS”) makes the flexmls® IDX API (as defined below) available for use in connection with the flexmls IDX WordPress plugin or software developed by other web site developers for use on broker or agent owned real estate web sites (“IDX Web Sites”). By using the flexmls IDX API, web site developers and the broker or agent who owns the Approved Web Sites (“you”) agree to be bound by the following terms of use (“Terms of Use”).

1. Flexmls IDX API Requires Permission From the MLS

The flexmls IDX API (“API”) provides access to IDX listing data and images (collectively, “IDX data”) and market statistics owned by the multiple listing service (“MLS”). The API also provides access to contact management and other data exclusively from your account in the flexmls Web system (“Your Data”). Your Data, the IDX Data and market statistics are collectively the “API Data”. You can only use the API with permission and under the terms of a valid license for the IDX data from the MLS. If you do not have permission from the MLS for your use of the API, you are violating these Terms of Use, subject to liability, and you agree to defend and indemnify FBS from any claims resulting from your use of the API.

2. The API Key

To use the API, you must pay for and use for every request an API key and secret (collectively, your “key”) provided by FBS. Only brokers or agents who are active members of the MLS and approved for IDX can use the API and your key is linked to your login to the flexmls Web system, so that if you become inactive or denied system access, the key also will become inactive. You will not share your key or secret with anyone else or enable anyone else to use your key or secret. If you become aware of anyone else using your key, you will notify FBS immediately.

You must pay the annual licensing fee in advance. Within 30 days of your purchase, you can cancel the license for any reason and we’ll refund your full license fee. After 30 business days, the annual license fee is not refundable and you accept the service as is. The license will renew automatically each year on the anniversary of the purchase, unless you let us know 30 days in advance that you don’t want the license to renew.

3. Flexmls WordPress Plugin and the API

The flexmls IDX API powers the widgets in the flexmls IDX WordPress Plugin (the “Plugin”), which currently includes an IDX slideshow widget, market stats widget, IDX search widget, 1-click searches widgets, and a contact me widget. The Plugin is available for download from WordPress.org. Use of the Plugin requires that you have a valid API key and be an active subscriber to FBS’s flexmls IDX 2.o service.

4. Using the API to Enhance Your Web Sites

The API will be made available at http://api.flexmls.com or another URL FBS may designate.

FBS may release subsequent versions of the API and require you to use the most recent version. If new versions are not compatible with previous implementations, FBS will do its best to notify you and maintain the prior version for a reasonable time for you to adopt the newer version. However, you understand and agree there may be breaking changes FBS is required to make to the API.

Except for Your Data, you may present API Data only on a transactional basis and you will not store results from the API except for temporary caching purposes.

You may not retain any copies of API Data. Your license to API Data is limited to making direct server calls to api.flexmls.com for API Data and to distributing API Data to your end user on your Web site(s) immediately upon receipt by your servers.

You may not present the API Data (or permit API Data to be presented) so that it appears to be available from a third party Web site.

You further agree not to otherwise reproduce, modify, distribute, decompile, disassemble or reverse engineer any portion of the API or the API Data.

You may not use the API in a manner that exceeds reasonable request volume, constitutes excessive or abusive usage, or otherwise fails to comply or is inconsistent with any part of the API documentation located within /developers (or other URL specified by FBS from time to time), as determined by FBS in its sole discretion.

FBS may rate limit the API at any time and in its sole discretion.

You may not use the APIs in any manner or for any purpose that violates any law or regulation, any right of any person, including but not limited to intellectual property rights, rights of privacy, or rights of personality, or in any manner inconsistent with MLS policies, rules or requirements or other Terms of Use or licenses you have from FBS or these Terms of Use.

If you become aware that any user of your implementation is in material breach of these API Terms of Use, then you agree to notify FBS promptly of such breach by e-mail to api-support@flexmls.com , and to take prompt commercially reasonable corrective action at your expense to remedy such breach. In addition, upon request of FBS or the MLS, you will either (a) use commercially reasonable efforts to obtain such equitable relief to prevent harm to FBS or the MLS, or (b) assign any of your applicable rights to permit FBS or the applicable licensor to seek such equitable relief. Your obligations to report and enforce the Applicable Terms will survive termination of these API Terms of Use or your use of the API.

6. Acceptable Use

You agree not to use the API or API Data in any way that is unlawful, or harms the MLS, FBS, its service providers, its suppliers, your end users, or any other person. Further, FBS may terminate your use of the API and API Data if and when FBS determines that your use is inappropriate.

7. Limited Relationship

You and FBS are independent contractors, and nothing in these API Terms of Use shall be construed as creating an employer-employee relationship, a partnership, or a joint venture. While you may publicly refer to the fact that you have implemented the FBS API, you agree not make any other public statements that assert or imply any other relationship with FBS, unless you have FBS’s prior written approval. Neither the name of FBS nor the names of the MLSs may be used to endorse or promote products derived from this software without specific prior written permission of FBS or the MLS.

8. Indemnity

You agree to hold harmless and indemnify FBS, and its subsidiaries, affiliates, officers, agents, employees, and suppliers, from and against any third party claim arising from or in any way related to your or your or your users’ use of the API or API Data, violation of these API Terms of Use or other actions connected with use of FBS services, including any liability or expense arising from all claims, losses, damages (actual and consequential), suits, judgments, litigation costs and attorneys’ fees, of every kind and nature. In such a case, FBS will provide you with written notice of such claim, suit or action.

9. NO WARRANTY

FBS PROVIDES THE API AND API DATA “AS IS,” “WITH ALL FAULTS” AND “AS AVAILABLE,” AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, FBS AND ITS SUPPLIERS MAKE NO REPRESENTATIONS, WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED. FBS AND ITS SUPPLIERS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES OR CONDITIONS, EXPRESS, STATUTORY AND IMPLIED, INCLUDING WITHOUT LIMITATION (A) WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, WORKMANLIKE EFFORT, ACCURACY, TITLE, QUIET ENJOYMENT, NO ENCUMBRANCES, NO LIENS AND NON-INFRINGEMENT, (B) WARRANTIES OR CONDITIONS ARISING THROUGH COURSE OF DEALING OR USAGE OF TRADE, AND (C) WARRANTIES OR CONDITIONS OF UNINTERRUPTED OR ERROR-FREE ACCESS OR USE.

10. LIABILITY LIMITATION; EXCLUSIVE REMEDY

IN NO EVENT WILL FBS OR ANY SUPPLIER BE LIABLE FOR ANY DAMAGES, INCLUDING WITHOUT LIMITATION ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF, BASED ON, OR RESULTING FROM THESE API TERMS OF USE OR YOUR USE OF THE API OR API DATA, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE EXCLUSION OF DAMAGES UNDER THIS PARAGRAPH IS INDEPENDENT OF YOUR EXCLUSIVE REMEDY AND SURVIVES IN THE EVENT SUCH REMEDY FAILS OF ITS ESSENTIAL PURPOSE OR IS OTHERWISE DEEMED UNENFORCEABLE. THESE LIMITATIONS AND EXCLUSIONS APPLY WITHOUT REGARD TO WHETHER THE DAMAGES ARISE FROM (A) BREACH OF CONTRACT, (B) BREACH OF WARRANTY, (C) NEGLIGENCE, OR (D) ANY OTHER CAUSE OF ACTION, TO THE EXTENT SUCH EXCLUSION AND LIMITATIONS ARE NOT PROHIBITED BY APPLICABLE LAW. IF YOU DO NOT AGREE WITH ANY PART OF THESE API TERMS OF USE, OR YOU HAVE ANY DISPUTE OR CLAIM AGAINST FBS OR ITS SUPPLIERS WITH RESPECT TO THESE TERMS OF USE OR THE SERVICES, THEN YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE API AND API DATA.

11. Intellectual Property

12. Changes

FBS reserves the right to change the API Terms of Use, and you are responsible for regularly reviewing these API Terms of Use. Your continued use of the API and/or API Data after the effective date of such changes will constitute acceptance of and agreement to any such changes. FBS may suspend or discontinue the Services at any time to you and/or to others, without notice.

13. Termination

FBS may change, suspend or discontinue the API and suspend or terminate your use of the API or API Data at any time for any reason, without notice. If FBS terminates your access to the API without cause, FBS will refund any fee you paid FBS on a pro rata basis for the year. You may also terminate by ceasing to use the API and API Data, removing implementation of the API from your Web site(s), and deleting all copies of the API Data except Your Data.

14. Choice of Law; Disputes

These API Terms of Use are governed by the laws of the State of North Dakota. You agree to submit to exclusive jurisdiction and venue in the state and federal courts sitting in Cass County, North Dakota, for any and all disputes, claims and actions arising from or in connection with the Services and/or these API Terms of Use.

14. General

You represent that you have the authority to bind the broker or agent linked to the API key. If any part of these API Terms of Use is determined to be invalid or unenforceable, then the invalid or unenforceable provision will be replaced with a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of these API Terms of Use will continue in effect. The section titles in these API Terms of Use are solely used for the convenience of the parties and have no legal or contractual significance. FBS may assign these API Terms of Use, in whole or in part, at any time with or without notice to you. You may not transfer, assign, or delegate the API Terms of Use and your key to any third party. FBS’s failure to act with respect to a breach by you or others does not waive its right to act with respect to subsequent or similar breaches. Except as expressly stated herein, these API Terms of Use constitute the entire agreement between you and FBS with respect to the API and supersede all prior or contemporaneous communications of any kind between you and FBS with respect to the API or API Data.